Independence Institute Amicus Brief in United States v. Emerson

Appeal from Criminal No. 6:98CR103C in the United States District Court

for the Northern District of Texas, San Angelo Division

BRIEF OF AMICUS CURIAE

INDEPENDENCE INSTITUTE

IN SUPPORT OF APPELLEE DR. TIMOTHY JOE EMERSON

DAVID B. KOPEL

14142 Denver West Parkway

Suite 185

Golden, Colorado 80401

303-279-6536

303-279-4176 (fax)

Attorney for Amicus Curiae

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,)

Appeal Nos. 99-10331, 99-10380 & 99-10499)

Plaintiff-Appellant-Cross Appellee)

Appeal from U.S. District Court, Northern)

District of Texas, San Angelo Division)

v. )

TIMOTHY JOE EMERSON,)

Defendant-Appellee-Cross Appellant)

Criminal No. 6:98CR103C)

Honorable Sam R. Cummings)

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for amicus curiae Independence Institute certifies that the following
listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiff-Appellant-Cross Appellee:

United States of America

Represented by:

William Bryan Mateja

U. S. Attorney's Office

1205 Texas Avenue, 7th Floor

Lubbock, Texas 79401

Defendant-Appellee-Cross Appellant:

Timothy Joe Emerson

Represented by:

Timothy Crooks

Federal Public Defender

600 Texas Street, Suite 100

Fort Worth, Texas 76102-4612

Amicus Curiae:

Independence Institute is a Colorado non-profit educational organization. The Independence Institute has
not issued stock or debt securities to the public. The Independence Institute is recognized by the Internal Revenue Service as a 26 U.S.C. § 501(c)(3) entity.

STATEMENT OF INTEREST OF AMICUS CURIAE

The Independence Institute is a public policy research organization dedicated to the principles of the
Declaration of Independence. Recognized by The Nation magazine as one of the four most effective state level think tanks, the Institute educates the public
and the legal community, and through participating in litigation, seeks to defend Constitutional rights. Scholars at the Independence Institute have
authored half a dozen books and over two dozen articles in law reviews and other scholarly journals on the Second Amendment and firearms policy. The
Institute's Research Director, David B. Kopel, is the lead author of the first law school textbook to focus on the Second Amendment:
"Gun Control and Gun Rights" (New York University Press, forthcoming, 2001).

All parties have consented to this brief.

ARGUMENT

State constitutions serve as an aid to interpreting the Bill of Rights. Harmelin
v. Michigan, 501 U.S. 957, 966, 977-78, 983 (1991); Benton
v. Maryland, 395 U.S. 784, 795-96 (1969). In the instant case, they prove the contemporary
importance of the right, prove that the right belongs to individuals, and
prove that judicial enforcement of the right does not harm society.

Since 1963, the people of Alaska, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Louisiana,
Maine, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North
Carolina, Utah, Virginia, West Virginia, and Wisconsin have chosen, either
through their legislature or through a direct vote, to add a right to arms to
their state constitution, to re-adopt the right to arms, or to strengthen an
existing right. In every state where the people have had the opportunity to
vote directly, they have voted for the right to arms by overwhelming margins.
For example, in 1998 Wisconsin adopted a guarantee by a vote of 1,205,873 to 425,052; in 1986, the West Virginia adopted its guarantee by a vote of 342,963
to 67,168. Thus, the people continue to adopt the right with an awareness of modern conditions, such as urbanization, modern firearms, and crime.

I. THE TEXTS OF STATE CONSTITUTIONAL ARMS RIGHTS SHOW THAT THE SECOND AMENDMENT PROTECTS A RIGHT OF ORDINARY CITIZENS

The texts of state guarantees to arms prove that the Second Amendment guarantees an individual
right belonging to ordinary American people, and disprove the claim that the
Second Amendment does not belong to all adult citizens, or that the Amendment
is concerned exclusively with the military balance of power between the
federal government and the states.

The 44 state constitutional guarantees to arms and the history of their adoption will be
examined. In order to comply with word-length limitations, this brief does not
quote in full every version of a every state constitutional provision. Full
quotations are available at Eugene
Volokh, State Constitutional Right to Keep and Bear Arms Provisions,
http://www.law.ucla.edu/faculty/volokh/beararms/statecon.htm.

Alabama:
"That every citizen has a right to bear arms in defense of himself and the state." Alabama
Constitution, Art. I, § 26 (1819; "defence" changed to "defense" in 1901).

Alabama's guarantee refers to community protection (such as might be provided in militia service) with
the phrase "bear arms in defense of
"the state." It also refers to personal protection: "bear arms in defense of
himself." The Alabama language shows that, contrary to the claims of some of
appellant's amici, the phrase "bear arms" does not mean only "bearing
arms in the militia." In fact, a "citizen" can "bear arms in defense of
himself."

The 1819 usage of
"bear arms'
is consistent with modern usage. Recently, Justice Ginsburg analyzed the
statutory phrase "carries
a firearm."
She wrote:

Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms")
and Black's Law Dictionary, at 214, indicate, "wear, bear, or carry...upon the person or in
the clothing or in a pocket, for the purpose...of being armed and ready for
offensive or defense action in case of a conflict with another person."

Muscarello v. United States, 524 U.S. 125, 150 (1998)(Ginsburg, J., dissenting on other grounds). Thus, the
phrase "bear arms" in the Second amendment encompasses more than just bearing
arms in the militia.

Alaska:
"A well‑regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be infringed. The
individual right to keep and bear arms shall not be denied or infringed by the
State or a political subdivision of the State." Alaska Constitution, Art.
I, § 19 (first sentence adopted 1959, second sentence 1994).

Some dicta from lower federal courts asserts that the Second Amendment right belongs only to state
militias, to protect them from disarmament by the federal government. Alaska's
guarantee shows the error of this claim. If the claim were true, then it would
be preposterous for the people of Alaska to place in their constitution
language which is identical to the Second Amendment; because of the
Supremacy Clause in the United States Constitution, nothing in the Alaska
Constitution could prevent the federal government from disarming the Alaska
state militia. The obvious reason that the people of Alaska placed the exact
language of the Second Amendment in their state Constitution was to keep the
Alaska state government from disarming the people of Alaska. The people of
Alaska chose these precise words because these precise words are used in the
United States Constitution to prevent the United States government from
disarming the people of the United States.

Arizona:
Discussed with Washington, infra.

Arkansas:
"The citizens of this State shall have the right to keep and bear arms for
their common defense." Art.
II, § 5 (1868, modifying
1836 version).

Arkansas's
guarantee is narrower than the Second Amendment, because it guarantees the
right only "for their common defense." By the theory of appellant's amici, the
arms right in Arkansas would include only people actively engaged in the
"common defense" such
as militiamen on active duty. However, Arkansas courts have interpreted this
right to guarantee all law-abiding Arkansans the right to own firearms.
Arkansas courts apply the "common defense" language so that the right only
includes the type of arms which might be useful for militia service.
Fife
v. State, 31
Ark. 455, 460-61, 25 Am. Rep. 556 (1876) (large military-sized pistols are
within scope of arms right, but small concealable handguns are not). See also
Wilson
v. State, 33
Ark. 557, 34 Am. Rep. 52 (1878). Thus, the Arkansas courts effectuate every
word of the state constitution: the right belongs to every "citizen" but the
right includes only ownership of the type of firearms useable for the "common
defense." The Fire case in Arkansas is one of many state cases whose
precedent was followed in United
States v. Miller,
307 U.S. 174, 183 n.3 (1939), which allowed for a Second Amendment claim on
behalf of two individual citizens (Jack Miller and Frank Layton, who were not
in any militia), while holding that the Second Amendment does not extend to
firearms which are unsuitable for militia use.

Colorado:
"The right of no person to keep and bear arms in defense of his home, person
and property, or in aid of the civil power when thereto legally summoned,
shall be called in question; but nothing herein contained shall be construed
to justify the practice of carrying concealed weapons." Art.
II, § 13 (1876).

Again, the phrase "keep and
bear arms" is used for more than militia use. The Colorado Constitution shows
that a person may "keep and bear arms in defense of his home, person, or
property."

Connecticut:
"Every citizen has a right to bear arms in defense of himself and the state."
Art.
I, § 15 (1818;
readopted 1965).

Connecticut too uses "bear
arms" to encompass personal defense.

Delaware:
"A person has the right to keep and bear arms for the defense of self, family,
home and State, and for hunting and recreational use." Art.
I, § 20 (1987). As
Delaware shows, "bear arms" can include "hunting and recreational use" as well
as defense of "self, family, home and State."

Florida:
"(a) The right of the people to keep and bear arms in defense of themselves
and of the lawful authority of the state shall not be infringed, except that
the manner of bearing arms may be regulated by law.'
Art.
I, § 8. (Sections
(b)‑(d), adopted in 1990, allow local governments to impose a waiting period
on some handgun purchases).

1838: "That the
free white men of this State shall have a right to keep and to bear arms for
their common defence." Art. I, § 21.

1868: "The people
shall have the right to bear arms in defence of themselves and of the lawful
authority of the State." Art. I, § 22.

1885: "The right
of the people to bear arms in defence of themselves and the lawful authority
of the State, shall not be infringed, but the Legislature may prescribe the
manner in which they may be borne." Art. I, § 20.

1968: "The right
of the people to keep and bear arms in defense of themselves and of the lawful
authority of the state shall not be infringed, except that the manner of
bearing arms may be regulated by law." Art. I, § 8.

The people of Florida have
repeatedly used "right of the people to keep and bear arms" to protect the
right of every individual citizen of Florida to possess a firearm. If, as
Appellant and its amici claim, the Second Amendment does nothing more than
protect state militias from federal interference, it is impossible to explain
why language based on the Second Amendment appears again and again in state
constitutional language throughout the nineteenth and twentieth centuries.

Georgia:
"The right of the people to keep and bear arms shall not be infringed, but the
General Assembly shall have power to prescribe the manner in which arms may be
borne." Art.
I, § 1,
& VIII (1877;
readopted 1982; 1865 and 1868 versions omitted).

Again, language nearly
identical to the Second Amendment is used to guarantee a right of individuals.
Before Georgia had its own right to arms guarantee, the Georgia Supreme Court
used the Second Amendment to declare a state handgun ban illegal. The Georgia
Court explained that the Second Amendment protects:

The right of the whole people, old and young,
men, women and boys, and not militia only, to keep and bear arms of every
description, and not such merely as are used by the militia, shall not be
infringed, curtailed, or broken in upon, in the smallest degree; and all this
for the important end to be attained: the rearing up and qualifying a
well‑regulated militia, so vitally necessary to the security of free State.

The Nunn decision
was consistent with every nineteenth century Supreme Court case, every
state court case (except for a lone concurring opinion), and every
legal treatise which discussed the Second Amendment. Appellant's
theory of the Second Amendment is a twentieth-century invention; for the first
century of the Second Amendment, it was undisputed that the Second Amendment
guaranteed an individual right of every citizen to own and carry firearms.
David
B. Kopel,
"The Second
Amendment in the Nineteenth Century,"
1998 B.Y.U. L. Rev. 1359.

Hawaii:
"A well regulated militia being necessary to the security of a free state, the
right of the people to keep and bear arms shall not be infringed." Art.
I, § 17 (1959).

Language identical to the
Second Amendment has been judicially determined to guarantee an individual
right of all citizens, not just of citizens who are in the militia.
State
v. Mendoza, 82
Haw. 143, 149 n. 9, 920 P.2d 357, 363 n. 9 (1996).

Idaho:
"The people have the right to keep and bear arms, which right shall not be
abridged; but this provision shall not prevent the passage of laws to govern
the carrying of weapons concealed on the person nor prevent passage of
legislation providing minimum sentences for crimes committed while in
possession of a firearm, nor prevent the passage of legislation providing
penalties for the possession of firearms by a convicted felon, nor prevent the
passage of any legislation punishing the use of a firearm. No law shall impose
licensure, registration or special taxation on the ownership or possession of
firearms or ammunition. Nor shall any law permit the confiscation of firearms,
except those actually used in the commission of a felony." Art.
I, § 11 (1978; 1889
version omitted).

Once more,
language which tracks the Second Amendment is used to protect an individual
right.

Illinois:
"Subject only to the police power, the right of the individual citizen to keep
and bear arms shall not be infringed." Art.
I, § 22 (1970).

This is another modern
usage of language from the Second Amendment to protect the rights of
individual citizens, and another usage of "bear arms" outside an exclusively
military context.

Indiana:
"The people shall have a right to bear arms, for the defense of themselves and
the State." Art.
I, § 32 (1851).

1816: "That the people have a right to bear arms for the defense of themselves and the State,
and that the military shall be kept in strict subordination to the civil
power." Art. I, § 20.

The 1816 Indiana Constitution underscores the point made at great length by some of appellant's
amici: one major rationale for the right to arms in the early republic was
concern about the dangers of standing armies. That is why the people of
Indiana put the right to arms provision in the same section as a restriction
on standing armies. But appellant's amici err by claiming that the right to
arms only includes people who are in a militia which might fight a standing
army. Even with the anti-standing army language, Indiana's Constitution, which
tracks the Second Amendment, was always construed to protect a right of all
citizens of Indiana (not just militiamen) to own and carry firearms--subject
of course of reasonable restrictions. E.g., Schubert
v. DeBard, 73 Ind. Dec. 510, 398 N.E.2d 1339 (Ind. Ct. App. 1980). The same is true of the
constitutions of North
Carolina, Ohio, South Carolina, and Vermont, all of which use a single constitutional section
to denounce standing armies and to protect a right of every citizen to possess
arms.

Kansas:
"The people have the right to bear arms for their defense and security; but
standing armies, in time of peace, are dangerous to liberty, and shall not be
tolerated, and the military shall be in strict subordination to the civil
power." Bill of Rights, § 4 (1859).

This section was once
interpreted as appellants' amici would prefer: as no right at all, but instead
as a mere platitude about the state's authority over its militia. But this
interpretation in the 1905 Salinas v. Blaksley case represented a sharp
break from all prior precedent. Kopel,
"The Second Amendment in the Nineteenth
Century,"
at 1510-12; City
of Salinas v. Blaksley,
72 Kan. 230, 83 P. 619 (1905). Kansas courts have abandoned the erroneous Salinas
result, and now allow individual Kansans who are not in the Kansas
National Guard to raise claims under the Kansas Bill of Rights guarantee.
Junction
City v. Mevis,
226 Kan. 526, 601 P.2d 1145 (1979).

Kentucky:
"All men are, by nature, free and equal, and have certain inherent and
inalienable rights, among which may be reckoned:

First: The right
of enjoying and defending their lives and liberties. . . .

Seventh: The
right to bear arms in defense of themselves and of the State, subject to the
power of the General Assembly to enact laws to prevent persons from carrying
concealed weapons." Bill of Rights § 1 (1891).

1792: "That the
right of the citizens to bear arms in defence of themselves and the State,
shall not be questioned." Art. XII, § 23. (1799 and 1850
provisions omitted.)

The 1792 Kentucky
constitution was nearly contemporaneous with the Second Amendment, which was
ratified in 1791. Kentucky shows that--the
year after the Second Amendment became the law of the land--constitutional
drafters used the phrase "bear arms" to include bearing arms for personal and
collective defense--"in
defence of themselves and the state." (emphasis added).

Louisiana:
"The right of each citizen to keep and bear arms shall not be abridged, but
this provision shall not prevent the passage of laws to prohibit the carrying
of weapons concealed on the person." Art. I, § 11 (1974; 1879 provision omitted).

Louisiana is one of many states to use language almost identical to the Second Amendment, while
including an explicit provision to allow regulation of the carrying of
concealed weapons. See, e.g., constitutions of Colorado,
Idaho, Kentucky, Mississippi, Missouri, Montana, New Mexico,
"New Mexico" and North Carolina; see also Florida,
Georgia, Tennessee and
Texas Constitutions (power to regulate all types of arms carrying). These arms-carrying
restrictions show that Second Amendment language was understood to include
ordinary citizens walking around with firearms for personal protection or
hunting. That is why the legislature was given authority to control the
carrying of weapons--to control ordinary people carrying guns.

Maine:
"Every citizen has a right to keep and bear arms and this right shall never be
questioned." Art.
I, § 16 (adopted 1987
after a collective‑rights interpretation of the original provision).

1819: "Every
citizen has a right to keep and bear arms for the common defence; and this
right shall never be questioned." Art. I, § 16.

State v. Freil, 508 A.2d 123 (Me. 1986), read the 1819 language the way that appellant urges this
court to read the Second Amendment--as
guaranteeing no real right at all. The people of Maine quickly demonstrated
that this reading was grossly out of step with contemporary norms--by
overwhelmingly adopting language to correct the court's error.

Massachusetts:
"The people have a right to keep and to bear arms for the common defence. And
as, in time of peace, armies are dangerous to liberty, they ought not to be
maintained without the consent of the legislature; and the military power
shall always be held in an exact subordination to the civil authority, and be
governed by it." Part
1, Art. 17 (1780).

Commonwealth v. Davis, 369
Mass. 886, 343 N.E.2d 847 (1976), breaking with Massachusetts precedent, held
that this provision is a mere affirmation of the state government's militia
powers. But see Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 313 (1825)(right to
keep arms is an individual right), and Commonwealth
v. Murphy, 166
Mass. 171, 44 N.E. 138 (1896) (ordinary individual may invoke arms right, but
right does not include mass armed parades in public). Massachusetts is the
only state where the state constitutional right to arms has been held not to
belong to possession of firearms by individuals who are not in a militia.

Michigan:
"Every person has a right to keep and bear arms for the defense of himself and
the state." Art.
I, § 6 (1835; readopted
1963).

If "to keep and bear arms"
is a "term of art" used to mean militia service only, as amici for appellant
argue, that "art" must have been entirely unknown to the people who drafted
the state constitutions of the early American Republic for
the early drafters used "keep and bear arms" again and again to protect the
right of individuals to possess and carry firearms for personal defense.

Mississippi:
"The right of every citizen to keep and bear arms in defense of his home,
person, or property, or in aid of the civil power when thereto legally
summoned, shall not be called in question, but the legislature may regulate or
forbid carrying concealed weapons." Mississippi
Constitution, Art. III, § 12 (1890; 1817,
1832, and 1868 provisions omitted).

The concealed weapon
restriction underscores that "the right to keep and bear arms" includes the
right to carry firearms (but not concealed firearms) for personal protection.

Missouri:
"That the right of every citizen to keep and bear arms in defense of his home,
person and property, or when lawfully summoned in aid of the civil power,
shall not be questioned; but this shall not justify the wearing of concealed
weapons." Art. I, § 23 (1945; 1865 and 1875 provisions omitted).

1820: "That the people have the right peaceably to assemble for their common good, and to
apply to those vested with the powers of government for redress of grievances
by petition or remonstrance; and that their right to bear arms in defence of
themselves and of the State cannot be questioned." Art. XIII, § 3.

The 1820 Missouri Constitution guarantees the right of
"the people" to assemble and to bear arms. The usage shows that the expectation that a
right would often be exercised collectively is consistent with the right
inhering in individuals.

Montana:
"The right of any person to keep or bear arms in defense of his own home,
person, and property, or in aid of the civil power when thereto legally
summoned, shall not be called in question, but nothing herein contained shall
be held to permit the carrying of concealed weapons." Art.
II, §12 (1889; readopted 1972).

Nebraska:
"All persons are by nature free and independent, and have certain inherent and
inalienable rights; among these are life, liberty, the pursuit of happiness,
and the right to keep and bear arms for security or defense of self, family,
home, and others, and for lawful common defense, hunting, recreational use,
and all other lawful purposes, and such rights shall not be denied or
infringed by the state or any subdivision thereof. To secure these rights, and
the protection of property, governments are instituted among people, deriving
their just powers from the consent of the governed." Art.
I, § 1 (arms right
added 1988).

Nevada:
"Every citizen has the right to keep and bear arms for security and defense,
for lawful hunting and recreational use and for other lawful purposes."
Art. I, § 11(1) (1982).

New Hampshire:
"All persons have the right to keep and bear arms in defense of themselves,
their families, their property and the state." Pt.
1, art. 2‑a (1982).

New Mexico:
"No law shall abridge the right of the citizen to keep and bear arms for
security and defense, for lawful hunting and recreational use and for other
lawful purposes, but nothing herein shall be held to permit the carrying of
concealed weapons. No municipality or county shall regulate, in any way, an
incident of the right to keep and bear arms." Art.
II, § 6 (first sentence adopted in 1971; second sentence adopted 1986; 1912 provision omitted).

The Constitutional right to arms provisions of New
Mexico, New Hampshire, Nebraska, Nevada,
and Montana were
adopted as early as 1889 and as late as 1988, but each constitution uses 'right to keep and
bear arms' to refer unmistakably to an individual right to arms. The usage reflects the
shared understanding of the vast majority of the American people that the same
phrase in the Second Amendment likewise guarantees a right to every
responsible citizen.

North Carolina:
"A well regulated militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be infringed; and, as
standing armies in time of peace are dangerous to liberty, they shall not be
maintained, and the military shall be kept under strict subordination to, and
governed by, the civil power. Nothing herein shall justify the practice of
carrying concealed weapons, or prevent the General Assembly from enacting
penal statutes against that practice." Art.
1, § 30 (1971).

1776: "That the people have a right to bear arms, for the defence of the State; and, as
standing armies, in time of peace, are dangerous to liberty, they ought not to
be kept up; and that the military should be kept under strict subordination
to, and governed by, the civil power." Bill of Rights, § XVII (1868 and
1875 provisions omitted).

The language of the 1776 North Carolina Constitution is particularly important. The 1776 use of the
phrase "the people have a right to bear arms" precedes James Madison's
derivative use of a very similar phrase in 1789 when he wrote the Second
Amendment. The 1776 North Carolina Constitution mentions "for the defence of
the State" but no other purpose. And the 1776 "right to bear arms" language is
included in the same sentence as denunciations of and restrictions on
standing armies. Thus, if appellants' amici's theory of the Second Amendment
(that it protects only active militiamen) were true, then a fortiori,
the 1776 North Carolina Constitution would only protect, at most, people in
active militia service. But in fact, the North Carolina Constitution has
always been, without dissent, construed to guarantee a right of ordinary
citizens to carry weapons for personal protection.
State v. Huntley, 25 N.C. 418, 422 (1843) ("For any lawful purpose--either
of business or amusement--the citizen is at perfect liberty to carry his gun.");State v. Newsom, 27 N.C. (5 Ired.) 250, 251 (1844)(upholding gun licensing law for free people of
color only because they, unlike citizens, were not parties to the social
compact). See also, e.g.,
State v. Kerner, 181
N.C. 574, 107 S.E. 222 (1921)(upholding constitutional right to possess
ordinary rifles, shotguns, and handguns).

North Dakota:
"All individuals are by nature equally free and independent and have certain
inalienable rights, among which are those of enjoying and defending life and
liberty; acquiring, possessing and protecting property and reputation;
pursuing and obtaining safety and happiness; and to keep and bear arms for the
defense of their person, family, property, and the state, and for lawful
hunting, recreational, and other lawful purposes, which shall not be
infringed." Art. I, § 1 (right to keep
and bear arms adopted 1984).

Like Nebraska and
Kentucky, North
Dakota interpolates the right to arms in a larger section which guarantees
numerous individual rights. Similarly, James Madison's
original proposal for the right to keep and bear arms put that clause in
Article
I, section 9, of the U.S. Constitution--the section which guarantees various
individual rights, such as habeas corpus. If Madison viewed the Second
Amendment a restriction on federal powers over the militia, then he would have
put the Second Amendment in Article I, section
8, the portion of the Constitution which grants militia powers to the federal
government. Robert
E. Shalhope, "The Armed Citizen in the Early Republic," 49 L. & Contemp. Probs.125, 135 (1986).

Ohio:
"The people have the right to bear arms for their defense and security; but
standing armies, in time of peace, are dangerous to liberty, and shall not be
kept up; and the military shall be in strict subordination to the civil
power." Art.
I, § 4 (1851).

1802: "That the
people have a right to bear arms for the defence of themselves and the State;
and as standing armies, in time of peace, are dangerous to liberty, they shall
not be kept up, and that the military shall be kept under strict subordination
to the civil power." Art. VIII, § 20.

Like North Carolina, Ohio places the arms right in
the same sentence as anti-standing army language. Yet the Ohio Constitution
has always been construed to protect an individual right of Ohio citizens to
own and carry guns for lawful purposes. E.g., Arnold
v. City of Cleveland,
616 N.E.2d 163 (Ohio 1993). For other states putting an ordinary individual's
right to arms in the same constitutional section as anti-standing army
language, see the constitutions of Pennsylvania, South
Carolina, Texas, Vermont, and Virginia.

Oklahoma:
"The right of a citizen to keep and bear arms in defense of his home, person,
or property, or in aid of the civil power, when thereunto legally summoned,
shall never be prohibited; but nothing herein contained shall prevent the
Legislature from regulating the carrying of weapons." Art.
II, § 26 (1907).

Oregon:
"The people shall have the right to bear arms for the defence of themselves,
and the State, but the Military shall be kept in strict subordination to the
civil power[.]" Art.
I, § 27 (1857).

Pennsylvania:
"The right of the citizens to bear arms in defence of themselves and the State
shall not be questioned."
Pennsylvania
Constitution, Art. 1, § 21 (1790).

1776: "That the
people have a right to bear arms for the defence of themselves and the state;
and as standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up; And that the military should be kept under strict
subordination, to, and governed by, the civil power." Declaration of Rights, cl. XIII.

The 1776 Pennsylvania
"right to bear arms" provision helped set the stage for the Second Amendment.
The 1790 "right of the citizens to bear arms" guarantee was enacted after
Congress had sent the Second Amendment to the states for ratification, and
while the state ratification process was on-going. Thus, the 1790 Pennsylvania
provision provides the best possible evidence about the meaning of
constitutional phrases at the very time the people were approving the Second
Amendment. Both in 1790 and 1776, Pennsylvania used the language "bear arms in
the [or "for"]
defence of themselves and the state." This language has always been
interpreted by Pennsylvania courts to protect the right of all Pennsylvanians,
not just militiamen, to possess firearms. E.g.,
Wright
v. Commonwealth,
77 Pa. St. 470 (1875). The language shows that "bear arms" is not a term of
art which means militia usage and nothing else.

To comply with word
limitations, this brief omits quotation of the Rhode Island, South Carolina,
and South Dakota constitutions--all of which contain language similar to the
Second Amendment. These provisions further refute the theory that Second
Amendment is concerned only with state/federal relations, and not with
personal rights.

Tennessee:
"That the citizens of this State have a right to keep and to bear arms for
their common defense; but the Legislature shall have power, by law, to
regulate the wearing of arms with a view to prevent crime." Art.
I, § 26 (1870).

1796: "That the
freemen of this State have a right to keep and bear arms for their common defence." Art. XI,§ 26. (1834
provision omitted.)

Tennessee's
Constitution mentions "common defence" and does not specifically state any
other purposes for the arms right. The Tennessee Supreme Court interpreted the
Tennessee guarantee, and suggested that the Second Amendment was intended "[i]n
the same view." Aymette
v. State, 21
Tenn. (2 Hump.) 154, 157 (1840). The Court held that bearing arms was only for
militia purposes, and that keeping arms was only for collective resistance to
tyranny, not for "private" defense. But even in Aymette, the right to
own firearms was not restricted solely to people who might be militiamen;
rather the right belonged to all citizens: "The citizens have the unqualified
right to keep the weapon .Y
But the right to bear arms is not of that unqualified character." 21
Tenn. at 160. Thus, even with the most restrictive reading possible of the
scope of "bear arms" and the purpose of the right to arms, all (law-abiding)
citizens retain a right to keep arms.

In Andrews
v. State, 50
Tenn. 165, 8 Am.Rep. 8 (1871), the court expanded upon Aymette. After
stating that the Tennessee provision and the Second Amendment were
functionally identical, 50 Tenn. at 177, 8 Am.Rep. at 12-13, the court
explained why recognition of the militia purpose behind the Tennessee
Constitution (and the Second Amendment) does not deprive ordinary citizens of
the right to use ordinary firearms for diverse purposes:

The right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and
to purchase and provide ammunition suitable for such arms, and to keep them in
repair. And clearly for this purpose, a man would have the right to carry them
to and from his home, and no one could claim that the Legislature had the
right to punish him for it, without violating this clause of the Constitution.

But farther than this, it must be held, that the right to keep arms, involves, necessarily, the right to use such arms for
all the ordinary purposes, and in all the ordinary modes usual in the country,
and to which arms are adapted, limited by the duties of a good citizen in
times of peace . . . .

What, then, is he protected in the right to
keep and thus use? Not every thing that may be useful for offense or defense;
but what may properly be included or understood under the title of arms, taken
in connection with the fact that the citizen is to keep them, as a
citizen. . . . [W]e would hold, that the rifle of all descriptions, the shot
gun, the musket, and repeater, are such arms . . . .

50 Tenn. at 178-79, 8 Am.Rep. at 13-14.

The Tennessee Attorney General (like appellant with its misreading of Miller) had argued that
the arms right was a "political right" which, unlike a "civil right", could be
restricted without limit. The court explained the error of an argument that:

fails to distinguish between the nature of the
right to keep, and its necessary incidents, and the right to bear arms for the
common defense. Bearing arms for the common defense may well be held to be a
political right, or for protection and maintenance of such rights, intended to
be guaranteed; but the right to keep them, with all that is implied
fairly as an incident to this right, is a private individual right, guaranteed
to the citizen, not the soldier.

50 Tenn. at 182 (emphasis in original).

To comply with word
limitations, the Texas, Utah, Vermont, and Virginia constitutions are omitted.
Vermont's
juxtaposes a right to bear arms with a denunciation of standing armies. That
Vermont's
right is individual shows that concern about standing armies does not negate
the guarantee of a strong personal right to arms. State
v. Rosenthal, 75
Vt. 295, 55 A. 610 (1903).

Washington:
"The right of the individual citizen to bear arms in defense of himself, or
the state, shall not be impaired, but nothing in this section shall be
construed as authorizing individuals or corporations to organize, maintain or
employ an armed body of men." Art.
I, § 24 (1889).

The Washington Constitution
(like Arizona's)
makes explicit a principle which has been considered implicit in the Second
Amendment: protection of an individual right "to bear arms"
does not forbid the government from controlling large assemblies of armed men.
Just a few years before the Washington Constitution was adopted, the Supreme
Court upheld a state ban on armed parades in public, even as the Court plainly
treated the Second Amendment as an individual right protected against federal
infringement.Presser v. Illinois, 116
U.S. 252 (1886).

West Virginia:
"A person has the right to keep and bear arms for the defense of self, family,
home and state, and for lawful hunting and recreational use." Art.
III, § 22 (1986).

Wisconsin:
"The people have the right to keep and bear arms for security, defense,
hunting, recreation or any other lawful purpose." Art.
I, § 25 (1998).

West Virginia and Wisconsin
are two of the most recent state adoptions of an arms right. Today, as in
1789, "the people"
is used to signify a right which may be exercised by ordinary citizens,
regardless of whether they are part of some government organization.

Wyoming:
"The right of citizens to bear arms in defense of themselves and of the state
shall not be denied." Art.
I, § 24 (1889).

Once more, "bear arms" is something that citizens can do
"in defence of themselves," and not only in defense of "the state."

Protected by forty-four state constitutions, the right to arms is no less fundamental than the right
to free exercise of religion and freedom from religious discrimination, which
is protected by 34 state constitutions. Jennifer Friesen, State
Constitutional Law App. 4A-12 (1993).

II. STATE CASE LAW SHOWS THAT JUDICIAL ENFORCEMENT OF THE RIGHT IS COMMON AND NOT HARMFUL

Courts in the above states have also upheld other, reasonable gun control laws. As the state experience
shows, judicial protection of the right to arms does not lead to anarchy, or
to any of the other ridiculous scenarios posited by appellant's amici.

[1] Chief Justice Joseph Henry Lumpkin, author of the opinion, is recognized as one of the
leading State Supreme Court judges of the nineteenth century. Judge Lumpkin In Memoriam, 36 Ga. 19 (1867); 6
Dictionary of American Biography 502 (Dumas Malone ed. 1933); The Story of Georgia 243 (Am.
Historical Society 1938).

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